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Court of Appeal, Fifth District, California.

PEOPLE of the State of California, Plaintiff & Respondent, v. Lewis Floyd HAMILTON, Defendant & Appellant.

Cr. 348.

Decided: December 26, 1967

Donald B. Cantwell, Modesto, for defendant and appellant. Thomas C. Lynch, Atty. Gen., by, Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws and John Fourt, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


The defendant, Lewis Floyd Hamilton, was charged in the information with four felonies. Count I alleged that on or about the 16th day of August 1966, he ‘* * * did wilfully, unlawfully and feloniously assault Glynis Lavonne Ihrig * * * by means of force likely to produce great bodily injury.’ Count II charged the defendant with another assault on Miss Ihrig ‘* * * by means of force likely to produce great bodily injury,’ which was said to have occurred on the 17th day of August 1966. Count III charged Hamilton with statutory rape of Glynis Lavonne Ihrig, and count IV alleged that the defendant was guilty of felonious assault on Johnny Hershell Winkle ‘* * * by means of force likely to produce great bodily injury.’

While the appeal from the judgments of conviction was not limited in form to specific counts, the effect of the appeal is in fact restricted to the convictions on counts I and II for the reason that on the eve of the trial the defendant changed his plea to guilty as to the statutory rape charge (count III), and that the conviction of simple assault, an included offense within that which was charged in count four, resulted in a county jail sentence with credit for the time already served in the exact amount of the 20-day sentence.

It is conceded in the appellant's opening brief that his ‘* * * claim of error is limited to Counts I and II of the information.’ The plea of guilty to the rape charge is not questioned in appellant's brief and the defendant has already been sentenced to a term of 20 days in the county jail. As the appellant has served the whole of his sentence on count IV, that portion of the judgment is now moot and an appellate court will not review questions which are only of academic interest. (Keefer v. Keefer, 31 Cal.App.2d 335, 337, 87 P.2d 856.)

The points made by the appellant for a reversal of the judgment as to the first and second counts are:

1) That in the circumstances the trial court committed incurable error by stating in the presence of the jury that the defendant had pleaded guilty to the statutory rape;

2) That, while the evidence on the first two counts was technically sufficient to warrant convictions of simple assault, such evidence was not ample to justify the felonious conviction on either of those two charges; and

3) That the young woman who was alleged to have suffered felonious assault in two instances was improperly coerced into testifying against the defendant.

We shall consider these claims in inverse order. When the 16-year-old Ihrig girl was first called to the witness stand, she refused to testify other than to give her name, address and the date of her birth. The trial court after directing her to answer other proper questions met her continued refusal by ordering her confined in the county jail for contempt of court. She had an overnight change of mind and testified the next day, but she said that she only did it because the probation officer and the jail matron had told her the court could keep her in jail until she did testify and might even send her to the California Youth Authority. She assured the court that she would tell the truth and the evidence was admitted.

It savours of the ridiculous to contend that a witness may decide for herself whether or not she will testify in court. Criminal law and procedure were not enacted for control by individuals, and a criminal case is not the personal property of a complaining witness or others. It was the state which enacted our criminal laws and it is the right of the state to avail itself of a relation of facts by all witnesses unless there exists and is claimed in a very small area a right of the witness to refuse to testify on the ground that it involves a privileged communication or that it might tend to incriminate or degrade him. No such situation existed here, and it was the right of the state to demand and compel the giving of testimony. The elements that might show the existence of pressure on Miss Ihrig to induce her to testify could, of course, be shown by the defense as bearing on her credibility as a witness.

The appellant contends that the evidence was not sufficient to sustain the felony assault convictions on counts I and II. The first assault (count I) consisted of about ten blows from Hamilton's closed fists, the second blow of which knocked the girl down, and the total made her nose and mouth bleed. The second assault included several blows from the defendant's fist, and the girl was pushed to the floor; her nose, lip and ear were caused to bleed, and her eyes to become discolored. The record shows that she was able to continue with her normal life on each of the two days involved; on the first day, she painted cabinets in her home; on the second day she went to a park with the defendant. Appellant contends that the verdict was wrong in that the victim in this case did not receive great bodily injury, but the question remains whether the evidence was such that the jury could have decided reasonably that the assaults, as they occurred, were likely to produce great bodily injury and we cannot say the evidence might not lead to this legitimate conclusion. Great bodily injury need not be the actual result of such attacks as were charged. (People v. McCaffrey, 118 Cal.App.2d 611, 616–617, 258 P.2d 557.)

The assaults in question were effected by repeated blows from appellant's fists, and the jury, it seems to us, was justified under these facts in finding that the appellant committed the assaults by means of force likely to produce great bodily injury. (People v. Score, 48 Cal.App.2d 495, 498, 120 P.2d 62.)

The transcript shows that the following took place as the basis for the contention that the court committed such error as was highly prejudicial to the defendant, and which could not have been cured by a proper charge to the jury:

‘Q. Now, what did * * * Mr. or Mrs. Ihrig say concerning the relations of Lewis and this girl at that time?

‘A. Well, I heard Mr. Ihrig ask Lewis the question, ‘Could you support her? Do you have a job?’ When he asked, when Mr. Ihrig asked Lewis if he could support Lavonne, he said, well, he said he didn't know. He said, ‘You get an apartment and move in, and if you think you can support her, you can have her.’

‘Q. All right. Now, then, that discussion lasted how long?

‘A. Oh, possibly five minutes.

‘Q. Now, what was it, was there any discussion at this particular time about whether or not Lewis would stay with his wife or go with her?

‘A. Well, Pat said——

‘MR. IORILLO: I want to interpose an objection. The counts of statutory rape are no longer in evidence. The only counts remaining are the felonious assault counts, and I don't know where this is going. I still don't know whether it can be tied in.

‘THE COURT: I can't see the relevancy. As Mr. Iorillo says, the defendant entered a plea of guilty to statutory rape in this matter. The consent or lack of consent of the parents to any illicit relationship between these two children is immaterial, so I will sustain the objection.’ (Emphasis added.)

Appellant cites In re Estate of James, 124 Cal. 653, 662, 57 P. 578, 1008, in which case the court reversed the judgment on the ground that specific acts of immorality cannot be proved to impeach a witness. Relying upon People v. Sanchez, 35 Cal.2d 522, 529, 219 P.2d 9, appellant states that this was not admissible as a felony conviction; therein the court said that improper reference to a previous conviction was prejudicial. Although defendant did not object at the time the court made the statement, defendant urges that the error is sufficiently serious to require a reversal. (See People v. Ford, 89 Cal.App.2d 467, 200 P.2d 867.) If the harmful effect of such improper statements could have been removed by an admonition to the jury, failure to request such an admonition might constitute a waiver, but if the misconduct was such that it could not be cured of its harmful effect, it could be ground for reversal even if the jury had been admonished or even if objection had been made. (See People v. Lyons, 50 Cal.2d 245, 262, 324 P.2d 556; People v. Perez, 58 Cal.2d 229, 247, 23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.2d 946.)

It should be noted that no instruction was given by the court to the jury to disregard the statement of the court relative to the plea of guilty to the charge of statutory rape. It is also true that no request was made by the defense that this be done; if the error could have been corrected through an admonition by the court, which was not requested, the defendant could not complain at this stage on the appeal. (People v. Corrigan, 48 Cal.2d 551, 559, 310 P.2d 953.)

It is also true that from previous testimony in the case the jurors might have inferred that the defendant and Miss Ihrig had had sexual intercourse; the record shows that the two had stayed in an apartment together for some time during their acquaintanceship. However, the defendant, at least on one occasion in his testimony, had denied that they had had sexual intercourse, and an inference that they had indulged in this type of intimacy was not specific, while the statement of the court above quoted could not be misunderstood.

We feel that in the circumstances the error could not have been cured by any admonition which might have been given by the court. The case was close insofar as the question whether the assaults alleged in counts I and II were actually felonious or simple assaults, and we feel that common sense makes it perfectly clear that some or all of the jurors were influenced adversely to the defendant by the court's wholly unnecessary statement that the defendant had pleaded guilty to statutory rape. It is the fixed intention of our court system that jurors should not be influenced adversely to a defendant in circumstances such as these by testimony or a statement by a court official that a defendant has been convicted of other crimes. As is well know, for the sole purpose of testing the credibility of a defendant who takes the stand, he may be asked in good faith if it be a fact that he has been convicted of a felony. This factor should be covered by an instruction that the question is permitted only for the sake of testing the credibility of the witness.

It seems apparent to us that a jury is much more apt to convict a man if they believe that he has already been guilty of some other felony, and particularly when the crimes are alleged to have been directed against the same young woman; we conclude that the defendant hare was treated most unfairly when the court stated in the presence of the jury that he had pleaded guilty to statutory rape; we think, further, that such prejudice could not have been eliminated later by an appropriate instruction to the jury.

Summarizing, we find it unnecessary and improper to pass on the propriety of the conviction on the fourth count as it was wholly moot at the time of sentencing; we affirm the judgment for statutory rape, and approve the sentence on that count (count III), but reverse the judgment of conviction on counts I and II.

CONLEY, Presiding Justice.

STONE and GARGANO, JJ., concur.

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